*

The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0304P (6th Cir.)

File Name: 03a0304p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JERRILYN HUNLEY; JEROME

HUNLEY,

Plaintiffs-Appellants,

v.

DUPONT AUTOMOTIVE,

Division of E.I. DuPont de

Nemours and Co., Inc.,

Defendant-Appellee.

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No. 01-2733

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 00-72043—Nancy G. Edmunds, District Judge.

Argued: June 17, 2003

Decided and Filed: August 25, 2003 

Before: BOGGS and GILMAN, Circuit Judges;

MARBLEY, District Judge.*

2 Hunley, et al. v. DuPont Automotive No. 01-2733

_________________

COUNSEL

ARGUED: Donnelly W. Hadden, Ann Arbor, Michigan, for

Appellants. Raymond Michael Ripple, E.I. DU PONT DE

NEMOURS AND COMPANY, Wilmington, Delaware, for

Appellee. ON BRIEF: Donnelly W. Hadden, Ann Arbor,

Michigan, Patrick D. Ball, Mount Clemens, Michigan, for

Appellants. Raymond Michael Ripple, Donna L. Goodman,

E.I. DU PONT DE NEMOURS AND COMPANY,

Wilmington, Delaware, Robert S. Krause, DICKINSON,

WRIGHT, PLLC, Detroit, Michigan, for Appellee. 

_________________

OPINION

_________________

ALGENON L. MARBLEY, District Judge. This is a

negligence action that was removed to federal court based on

diversity jurisdiction. Plaintiffs-Appellants, Jerrilyn Hunley,

individually and as guardian of the estate of Jerome Hunley,

and JeromeHunley, brought suit against Defendant-Appellee,

DuPont Automotive, Division of E.I. DuPont de Nemours and

Co., Inc., for harm incurred by Jerome Hunley after his

exposure to a large paint spill in the DuPont Automotive plant

in which he was working as a security guard. PlaintiffsAppellants now appeal the district court’s ruling granting

summary judgment to Defendant-Appellee. The district court

exercised jurisdiction over this matter pursuant to 28 U.S.C.

§ 1332. This Court’s appellate jurisdiction is proper under 28

U.S.C. § 1291.

For the reasons discussed below, this Court finds that the

district court properly granted summary judgment to

Defendant-Appellee, and, therefore,AFFIRMS the judgment

of the district court.
No. 01-2733 Hunley, et al. v. DuPont Automotive 3

1

DuPont asserts that all doors to the area of the spill were shut. As

this matter is before the Court on appeal from the district court’s order

granting summary judgment to the Defendant-Appellee, however, the

Court views the facts in the light most favorable to Plaintiffs-Appellants.

Therefore, the Court presumes for the present purposes that the PlaintiffsAppellants are correct that Hunley entered the area of the spill through a

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual History

Defendant-Appellee, DuPont Automotive, Division of E.I.

DuPont de Nemours and Co., Inc. (“DuPont”), operates a

paint factory in Mount Clemens, Michigan. At approximately

9:34 p.m., on January 27, 1997, DuPont suffered one of the

largest paint spills in the history of the plant. At that time, a

DuPont employee was in the process of filling a shipping

container with paint to ship to an automobile manufacturer.

As she was moving the container toward a holding tank, she

struck the bottom of the tank with the top of the container,

thereby dislodging the filling valve of the tank. Within the

next few minutes, the tank emptied its 2400 gallons of paint

onto the worker and the surrounding work area. 

DuPont mandates that any chemical spill of more than onequarter cup necessitates an emergency response. Therefore,

at 9:35 p.m. on the evening of the spill, DuPont employees

initiated emergency procedures. In particular, a DuPont fire

brigade member working in the production area sounded the

alarm, calling into action a plant-wide emergency response.

Upon hearing the alarm, DuPont’s internal fire brigade

members donned their protective gear and entered the spill

area. According to DuPont, within minutes, all non-fire

brigade employees had evacuated the production area and

reported to their assigned evacuation sites, closing the fire

doors between the production area and the shipping

warehouse as they left. One door, however, was left open,

such that non-emergency response employees were able to

gain entrance to the area of the spill.1 

4 Hunley, et al. v. DuPont Automotive No. 01-2733

door that had been left open. 

2

Although there was some dispute between the parties regarding the

nature of the head count report provided by Pinkerton Security, it appears

that the purpose of the report is to ensure that all non-emergency response

employees signed in to the building at the time of the emergency are

accounted for.

3

The Court recognizes that DuPont asserts that Hunley had been

issued protective clothing, but that he was simply not wearing it at that

time. Hunley, however, asserts that the special clothing that he was

provided by DuPont would not have protected him from the spill, and was

not of the same type as that worn by the fire brigade members.

DuPont contracts with Pinkerton, a private security

company, to provide security at the plant. At the time of the

spill, Plaintiff-Appellant Jerome Hunley (“Hunley”) was

employed as a Pinkerton security guard at the DuPont plant

in Mount Clemens. Pinkerton security guards are obligated

to follow Pinkerton’s Site Post Orders. Those orders specify

that, in the event of a spill, Pinkerton security guards are to

provide a head count report to the fire brigade captain.2 The

Pinkerton Site Post Orders also expressly state: “Security

does not respond to the scene of a spill.” 

According to Plaintiffs-Appellants, upon Hunley’s arrival

at work on the evening of the spill, he was told by his

supervisor, Bill Maynard, to deliver the head-count report to

the fire brigade captain. Hunley printed out the report, and

then delivered it to the fire brigade captain, whom he found

in the area of the spill. Hunley claims that he gained access

to the area of the spill by entering through an open door.

When he entered the area of the spill to deliver the report, he

was not wearing protective clothing, nor was he breathing

through a respirator; none of these protective items had been

issued to him by DuPont. The fire brigade members in the

vicinity of the spill, however, were all wearing protective

clothing, including masks.3
No. 01-2733 Hunley, et al. v. DuPont Automotive 5

4

Apparently, one full day passed between the night of the spill and

the day that Hunley drove to his grandmother’s home. Hunley has no

recollection of what occurred on that intervening day. 

Hunley states that, shortly after delivering the report to the

fire captain, he began to have “rushing thoughts,” which he

describes as “too many thoughts running through [his] head

at once,” and that he also began feeling dizzy. After working

the night of the spill, Hunley went home and tried to sleep.

While trying to sleep, however, he began hallucinating. In

particular, he claims that he heard “whale sounds” and saw

“upside down people.” Hunley then drove to his

grandmother’s home, thinking that would help calm him.

4

On the drive back home from his grandmother’s house,

Hunley’s hallucinations continued. In response to one of the

hallucinations, Hunley began driving his truck at speeds

estimated to be between sixty and ninety miles per hour

against rush hour traffic in Troy, Michigan. Ultimately, his

car became airborne, and then landed on top of the car of a

nineteen-year-old woman, who was pronounced dead at the

scene of the accident. Immediately following the accident,

Hunley was transported to a nearby hospital, where he was

initially diagnosed with brief reactive psychosis, a temporary

diagnosis used to explain his acute psychotic symptoms. 

Prior to the car accident, Hunley had no recorded medical

history of mental illness, nor did he have a criminal record.

He was twenty-four years old at the time. After a series of

mental evaluations following the accident, Hunley was

ultimately diagnosed with schizophrenia, an organic mental

disease that frequently manifests itself when sufferers are in

their late teens or early twenties. He has also been diagnosed

as suffering from an “acute psychotic break” accompanied by

auditory and visual hallucinations at the time of the accident.

Hunley’s expert, Dr. Gerald Shiener, M.D., opines that

Hunley’s psychotic break was brought on by the stress of

knowing that he had been exposed to toxins in the area of the

6 Hunley, et al. v. DuPont Automotive No. 01-2733

spill by being in the area without protective gear while all

others in the vicinity of the spill were protected by special

clothing and masks.

Following one year of hospitalization, Hunley was tried on

a charge of manslaughter for the death of the nineteen-yearold woman in the car accident. At the conclusion of the trial,

he was found guilty but mentally ill. He is currently

incarcerated, serving a term of four to fifteen years.

B. Procedural History

Plaintiffs-Appellants originally filed this case in the Circuit

Court for the County of Macomb on January 28, 2000.

Defendant-Appellee removed the case to the United States

District Court for the Eastern District of Michigan on May 8,

2000, on the basis of diversity of citizenship. On

November 28, 2001, after discovery had been completed, the

district court issued an opinion and order granting summary

judgment to Defendant-Appellee. Plaintiffs-Appellants filed

their notice of appeal from that order on December 18, 2001.

II. STANDARD OF REVIEW

The district court’s grant of summary judgment is subject

to de novo review by this Court. Peters v. Lincoln Elec. Co.,

285 F.3d 456, 465 (6th Cir. 2002) (citing Darrah v. City of

Oak Park, 255 F.3d 301, 305 (6th Cir. 2001), and Perez v.

Aetna Life Ins. Co., 150 F.3d 550, 554 (6th Cir. 1998)). Thus,

on appeal, this Court reviews a motion for summary judgment

according to the same standard that the district court applies.

Summary judgment is appropriate “[i]f the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c). The movant has the burden of establishing that there

are no genuine issues of material fact, which may be
No. 01-2733 Hunley, et al. v. DuPont Automotive 7

accomplished by demonstrating that the non-moving party

lacks evidence to support an essential element of its case.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Logan

v. Denny’s, Inc., 259 F.3d 558, 566 (6th Cir. 2001). In

response, the non-moving party must present “significant

probative evidence” to show that “there is [more than] some

metaphysical doubt as to the material facts.” Moore v. Philip

Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993).

“[S]ummary judgment will not lie if the dispute is about a

material fact that is ‘genuine,’ that is, if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). 

In evaluating a motion for summary judgment, the evidence

must be viewed in the light most favorable to the non-moving

party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

(1970). The non-moving party, however, “may not rest upon

its mere allegations . . . but . . . must set forth specific facts

showing that there is a genuine issue for trial.” FED. R. CIV.

P. 56(e); see Celotex, 477 U.S. at 324; Searcy v. City of

Dayton, 38 F.3d 282, 286 (6th Cir. 1994). The existence of

a scintilla of evidence in support of the non-moving party’s

position will not be sufficient; there must be evidence on

which the jury could reasonably find for the non-moving

party. Anderson, 477 U.S. at 251; Copeland v. Machulis, 57

F.3d 476, 479 (6th Cir. 1995).

III. DISCUSSION

A. Negligence

The district court granted summary judgment to DuPont on

the ground that Hunley failed to set forth a prima facie case

of negligence. To state a prima facie case of negligence in

Michigan, the plaintiff must establish the following four

elements: (1) that the defendant owed the plaintiff a duty;

(2) that the defendant breached that duty; (3) that the

defendant’s breach caused the plaintiff’s harm, which

8 Hunley, et al. v. DuPont Automotive No. 01-2733

includes (a) cause in fact and (b) legal, or proximate, cause;

and (4) damages to the plaintiff. Case v. Consumers Power

Co., 615 N.W.2d 17, 20 & n.6 (Mich. 2000). The district

court premised its ruling on its finding that, although DuPont

owed a duty to Hunley, DuPont did not breach that duty

through its conduct. Based on the analysis set forth below,

we conclude that, although Plaintiffs-Appellants raised a

genuine issue of fact with respect to both duty and breach,

summary judgment was nonetheless proper because they

failed, as a matter of law, to establish a genuine issue of

material fact as to the existence of proximate cause.

1. Existence of a Duty

DuPont argues that Plaintiffs-Appellants have failed to

establish the duty element of the prima facie case because it

had neither a duty to provide Hunley with personal protective

equipment, nor a duty to warn him that a psychotic break was

a danger associated with visual exposure to a paint spill.

DuPont errs, however, by viewing the issue of duty so

narrowly. Although it may not have owed these particular

duties to Hunley, it did have a general duty to exercise due

care to protect its security guards, including Hunley, from

certain dangers associated with paint spills. This duty arises

from the relationship between DuPont and Hunley of

premises owner and invitee. 

Generally, “[a]n invitee, and in this case a business invitee,

is one who enters a premises to conduct business that

concerns the premises owner at the owner’s express or

implied invitation.” Riddle v. McLouth Steel Prods. Corp.,

485 N.W.2d 676, 679 n.4 (Mich. 1992). The Supreme Court

of Michigan has determined that an independent contractor is

a business invitee. Beals v. Walker, 331 N.W.2d 700, 704

(Mich. 1982) (recognizing that an employee of an

independent contractor who had been hired by the premises

owner to do repair work was an invitee of the premises

owner); see Case v. Wal-Mart Stores, Inc., 13 F. Supp. 2d

597, 602 (S.D. Miss. 1998) (citing Beals for the proposition
No. 01-2733 Hunley, et al. v. DuPont Automotive 9

that, in Michigan, an employee of an independent contractor

is a business invitee). Here, Pinkerton had a contract to

provide security services to DuPont, and Hunley was an

employee of that independent contractor. Thus, under Beals,

Hunley was a business invitee on DuPont’s premises.

A premises owner has a duty to exercise reasonable care to

protect invitees from unreasonable risks of harm caused by a

dangerous condition on the premises. Williams v.

Cunningham Drug Stores, Inc., 418 N.W.2d 381, 383 (Mich.

1988) (citing RESTATEMENT (SECOND) OF TORTS § 343, at

215-16). The owner’s duty is not absolute, however. “It does

not extend to conditions from which an unreasonable risk

cannot be anticipated . . . .” Id.; Stabnick v. Williams Patrol

Serv., 390 N.W.2d 657, 658 (Mich. Ct. App. 1986) (holding

that premises owners have no duty to warn invitees of

unforeseeable dangers). A premises owner has a duty to warn

invitees only of known dangers, or dangers that should have

been known through the exercise of reasonable care, which

the premises owner understands or should have understood

would pose an unreasonable risk. Bertrand v. Alan Ford,

Inc., 537 N.W.2d 185, 186 (Mich. 1995).

Applying the Cunningham Drug Stores standard, we

believe that DuPont had a duty to exercise due care to protect

its security guards, including Hunley, from the known

dangers associated with paint spills that pose an unreasonable

risk of harm. Although DuPont did not have a duty to protect

its security guards from unreasonable risks that could not be

anticipated, it is clear that the company did anticipate at least

some unreasonable risks from paint spills. The fact that

DuPont must have been aware of at least some risks

associated with paint spills is evidenced by the fact that it

provided its own emergency personnel with protective

equipment, including special clothing and masks, with which

they equipped themselves before entering the area of the spill.

Were it not for the existence of some dangers that were

known and anticipated by DuPont to pose an unreasonable

risk of harm, the company likely would not have equipped its

10 Hunley, et al. v. DuPont Automotive No. 01-2733

response personnel with such protective gear. Therefore, as

the premises owner, DuPont was under an obligation to

exercise due care to protect its security guards from these

known risks.

Accordingly, we conclude that Plaintiffs-Appellants

satisfied the duty element of their prima facie case.

2. Breach

Plaintiffs-Appellants assert that DuPont breached its duty

to Hunley by failing to provide him with protective gear, by

failing to warn him about the nature of the hazards associated

with paint spills, and by failing to warn him about the risks

inherent in delivering the head count to the fire brigade

captain. In addition, they argue that DuPont breached its duty

when it allowed Hunley to enter the area of the spill through

an open door. 

First, we agree with the district court that DuPont did not

breach its duty to Hunley by failing to provide him with

protective gear. As indicated above, the duty imposed upon

DuPont is a duty to protect its security guards from known

dangers that DuPont understands pose an unreasonable risk of

harm. Although the paint spill presented a risk, DuPont had

no reason to know that it would present a risk to Hunley. At

the time of the spill, DuPont understood that Pinkerton

security guards were not to respond to the scene of a chemical

spill. The purpose of providing protective gear is to protect

those employees who will be exposed to the spill itself.

Because DuPont reasonably believed that, as a Pinkerton

security guard, Hunley would not respond to the scene of the

spill, DuPont could not have breached its duty to Hunley by

failing to provide him with protective gear.

For the same reasons, we hold that DuPont did not breach

its duty to Hunley by failing to warn him of the dangers

associated with toxic spills and with delivering head counts

to the fire brigade captain in the area of those spills.
No. 01-2733 Hunley, et al. v. DuPont Automotive 11

Although those dangers exist, and were known by DuPont,

DuPont had no reason to foresee that Hunley would be

exposed to those dangers; DuPont’s management reasonably

believed that Hunley’s Site Post Orders prohibited him from

entering the area of the spill. Thus, DuPont had no reason to

believe that these dangers posed an unreasonable risk of harm

to Hunley. Therefore, DuPont did not breach its duty by

failing to give Hunley these warnings.

A question of fact exists, however, with respect to whether

DuPont may have breached its duty to protect Hunley from

the dangers of paint spills by leaving open a door to the spill

area. DuPont asserts that all doors to the area of the spill

were closed upon evacuation of the employees who had been

working in the area prior to the spill. Hunley, on the other

hand, alleges that he entered the area to deliver the head count

through an open door. Thus, an issue of fact exists with

respect to whether a door was, in fact, left open.

Assuming the door was left open, a jury might find that this

fact constitutes a breach of DuPont’s duty. Although DuPont

understood that Pinkerton security guards were not to enter

the area of the spill, a jury might find that DuPont should

have foreseen that a security guard would nonetheless enter

the area if a door were left open. In particular, the risk of a

security guard entering the area of the spill through an open

door might have been foreseeable in light of the fact that the

security guard was told to deliver a head count to the fire

brigade captain, wherever he may be. Moreover, although

DuPont’s other failures do not in and of themselves constitute

a breach of DuPont’s duty, those failures certainly become

factually significant if DuPont could have foreseen that, by

leaving a door open, Hunley might enter the area of the spill

despite his Site Post Orders to the contrary. 

Therefore, we conclude that the Plaintiffs-Appellants

satisfied the breach element of their prima facie case to the

extent necessary to survive summary judgment.

12 Hunley, et al. v. DuPont Automotive No. 01-2733

3. Causation

We now turn to the question of whether PlaintiffsAppellants have raised a genuine issue of material fact with

respect to the issue of causation. To satisfy this element,

Plaintiffs-Appellants must demonstrate both cause in fact and

legal, or proximate, cause. Based on our conclusion that

Plaintiffs-Appellants have failed to demonstrate proximate

cause as a matter of law, we need not reach the issue of cause

in fact.

Relying on La Pointe v. Chevrette, 250 N.W. 272 (Mich.

1933), Hunley asserts that, under Michigan law, proximate

cause requires only that the harm suffered by the plaintiff be

the natural and probable result of the defendant’s negligence,

not that the particular harm suffered be foreseeable. In

La Pointe, a young boy suffered an unusual infection of the

bone in his leg after his employer forced him to work

outdoors in inclement weather without the proper protective

clothing. In ruling that the employer could be liable for the

boy’s disease, even though it was not foreseeable that such a

severe illness would result from working outside in inclement

weather, the court stated: 

“Where an act is negligent, to render it the proximate

cause, it is not necessary that the one committing it might

have foreseen the particular consequence or injury, or the

particular manner in which it occurred, if by the exercise

of reasonable care it might have been anticipated that

some injury might occur.”

Id. at 275 (quoting Baker v. Mich. Cent. R.R. Co., 135 N.W.

937, 940 (Mich. 1912)).

Although this language in La Pointe suggests that the

particular harm suffered by the plaintiff need not have been

foreseen for there to be proximate cause, more recent

Michigan case law sets forth a different standard of law.

Recent cases indicate that Michigan courts have shifted their
No. 01-2733 Hunley, et al. v. DuPont Automotive 13

5

Although proximate cause often must be resolved by the jury, the

Court may decide this issue as a matter of law if reasonable minds could

not disagree with respect to the resolution of this issue. Nichols v. Dobler,

655 N.W.2d 787, 788 (Mich. Ct. App. 2002).

analysis of this issue and, under the current view, the

determination of proximate cause involves an examination of

the foreseeability of the harm suffered by the plaintiff, and

whether the defendant should be held responsible for such

harm. Haliw v. Sterling Heights, 627 N.W.2d 581, 588

(Mich. 2001) (finding that “‘legal cause or “proximate cause”

normally involves examining the foreseeability of

consequences, and whether a defendant should be held legally

responsible for such consequences’”) (quoting Skinner v.

Square D Co., 516 N.W.2d 475, 479 (Mich. 1994)); Moning

v. Alfono, 254 N.W.2d 759, 765 (Mich. 1977) (stating that

proximate cause turns on whether the result of the defendant’s

conduct was foreseeable). Indeed, even some cases that

predated La Pointe indicate that proximate cause requires that

the particular harm suffered by the plaintiff be foreseeable.

Luck v. Gregory, 241 N.W. 862, 864 (Mich. 1932) (stating

that proximate causation requires not only that the plaintiff’s

harm be the natural and probable result of the defendant’s

conduct, but also that “it ought to have been foreseen, in the

light of the attending circumstances”); Clumfoot v. St. Clair

Tunnel Co., 190 N.W. 759, 760 (Mich. 1922) (recognizing

that proximate cause requires that the reasonably prudent

person would have foreseen or anticipated the plaintiff’s harm

as a result of the defendant’s negligence).

Accordingly, we will apply Michigan’s more recent

principle of proximate cause in examining whether PlaintiffsAppellants have raised a genuine issue of material fact with

respect to this element.5 Applying this standard, it is clear

that Plaintiffs-Appellants have failed to establish this element

of their prima facie case because no reasonable mind could

find that it was foreseeable that Hunley would suffer an acute

psychotic break, and, ultimately, schizophrenia, as a result of

14 Hunley, et al. v. DuPont Automotive No. 01-2733

6

It is worth noting that this case is distinguishable from La Pointe.

In La Pointe, although the particular harm suffered was not necessarily

foreseeable, it was foreseeable that some physical harm would result from

being forced to work outdoors in inclement weather. Here, on the other

hand, it was not foreseeable that any harm would result to Hunley from

the stress of knowing that he was in the area of the toxic spill without

protective gear. Furthermore, because security guards are expected to

react to situations that would likely cause stress, it was not foreseeable

DuPont’s having left the door to the spill area open. Even if

it was foreseeable that a security guard not clothed in

protective gear would enter the area of the spill and see other

individuals in the area wearing protective gear, it was not

reasonably foreseeable that, as a result of doing so, he would

suffer the harm incurred by Hunley. Hunley’s own expert,

Dr. Shiener, stated simply that he believed that some of the

mental health literature indicated that there was a relationship

between the onset of psychosis and exposure to stressful

situations. This statement does not indicate that exposure to

stressful situations is certain to cause psychosis, or that even

mental health experts can foresee which stressful situations

will cause psychosis. Accordingly, no reasonable mind could

find that it was foreseeable that exposure to this stressful

situation would have resulted in Hunley’s illness.

Furthermore, we are of the opinion that Hunley failed to

establish proximate cause even under the more lenient

standard of foreseeability that he contends applies under these

circumstances. It may have been foreseeable that some

physical harm might result from exposure to the paint spill.

Plaintiffs-Appellants, however, argue not that Hunley’s

psychotic break resulted from exposure to the spill itself, but

that it resulted from Hunley’s exposure to the stress of

knowing that he had been in the area of the spill while he was

not wearing protective gear, although others in the area were

wearing such gear. We conclude, as a matter of law, that it

was not reasonably foreseeable that any harm, let alone the

particular harm suffered by Hunley, would have resulted from

this stress.

6
No. 01-2733 Hunley, et al. v. DuPont Automotive 15

that stress would cause this type of reaction.

Therefore, we AFFIRM the district court’s ruling granting

summary judgment to DuPont, but do so on the ground that

Hunley failed to raise a genuine issue of material fact with

respect to proximate cause, a key element of his prima facie

case of negligence. 

B. Assumption of Risk

As an alternative basis for its ruling, the district court found

that, even if Hunley had satisfied all four elements of his

prima facie case, summary judgment was nonetheless proper

based on the affirmative defense of assumption of risk. We

agree, and find that, in addition to the proximate cause

analysis set forth above, the doctrine of primary assumption

of risk also supports the district court’s ruling granting

summary judgment to DuPont. 

1. Propriety of District Court’s Reliance on Assumption

of Risk

As a threshold matter, Plaintiffs-Appellants argue that it

was improper for the district court to apply the doctrine of

assumption of risk to this case because that affirmative

defense was not argued by the Defendant either in its

written motion for summary judgment or during oral

argument on the motion. We conclude, however, that the

district court acted within its authority in relying upon this

doctrine. A district court may properly grant summary

judgment on grounds not argued in the motion by the

parties. Hines v. Joy Mfg. Co., 850 F.2d 1146, 1150 (6th

Cir. 1988) (“Where it is clear there is no genuine issue of

material fact, a court may properly grant summary

judgment on a ground other than that assigned in the

motion.”). Therefore, we proceed to consider the merits of

the defense under these circumstances.

16 Hunley, et al. v. DuPont Automotive No. 01-2733

2. Application of the Doctrine

In its opinion, the district court found that Hunley was

prevented from recovering against DuPont because he was

harmed while performing the very duty that he was hired to

perform: delivering the head count to the fire brigade

captain. On appeal, Plaintiffs-Appellants assert that the

district court erred because the Michigan Supreme Court

has determined that the doctrine of assumption of risk is no

longer viable as an affirmative defense, except in very

specific circumstances. In particular, they state that the

doctrine is viable only when the plaintiff was an employee

of the defendant and assumed an express contractual

assumption of risk for purposes of his employment. They

assert that those circumstances are absent here, and that,

therefore, the defense cannot apply to bar their claim. 

Contrary to Plaintiffs-Appellants’ characterization of the

current state of the law in Michigan with respect to

assumption of risk, we find that the affirmative defense is

still viable, and, moreover, that it applies under these

circumstances.

In Kreski v. Modern Wholesale Electric Supply Co., 415

N.W.2d 178 (Mich. 1987), the Michigan Supreme Court

distinguished between primary assumption of risk, which

involves a situation in which the defendant does not owe a

duty of care to the plaintiff because the plaintiff agreed in

advance to relieve the defendant of a duty of care, and

secondary assumption of risk, which involves a situation in

which the plaintiff voluntarily encounters a known risk

without first manifesting assent to relieve the defendant of

liability. Id. at 185. The Kreski court found that, although

Felgner v. Anderson, 133 N.W.2d 136 (Mich. 1965),

eliminated secondary assumption of risk, primary

assumption of risk is still a viable affirmative defense in

Michigan. Id. It recognized, in particular, that, postFelgner, primary assumption of risk had been relied upon
No. 01-2733 Hunley, et al. v. DuPont Automotive 17

in Carter v. Mercury Theater Co., 379 N.W.2d 409 (Mich.

Ct. App. 1985). Id. at 185 n.11.

In Carter, a private security guard was shot by two

patrons at the movie theater where he had been working. 

Carter, 379 N.W.2d at 410. The security guard brought a

negligence action against the theater for failing to prevent

the assailants from reentering the theater after they had

been ejected. Id. After the trial court denied summary

judgment to the defendant, the Michigan Court of Appeals

reversed, finding that the plaintiff could not recover from

the theater because he was injured while performing the

very duty that he was hired to perform — providing

security for the theater. Id. 

Similarly, in Turner v. Northwest General Hospital, 293

N.W.2d 713 (Mich. Ct. App. 1980), which was relied on by

the district court below, a hospital hired a private security

company to provide security for invitees of the hospital. 

The plaintiff’s decedent, an employee of the private

security company, was shot and killed while on duty at the

hospital. In rejecting the plaintiff’s wrongful death claim,

the Turner court stated:

In this case, defendant hospital, recognizing a duty to

safeguard, protect and secure its patients, visitors,

doctors and other business invitees, hired an

independent security guard company for that purpose. 

What happened to plaintiff’s decedent was the very

reason plaintiff’s decedent and his employer were

hired, i.e., to safeguard against criminal acts of

violence. It would be ironic to hold defendant hospital

liable to an employee of the very security guard

company it hired for protection.

Id. at 715.

Relying on both Carter and Turner, the court in In re Air

Crash Disaster at Detroit Metropolitan Airport on August

18 Hunley, et al. v. DuPont Automotive No. 01-2733

16, 1987, 737 F. Supp. 409 (E.D. Mich. 1989), also rejected

the plaintiffs’ claims based on the doctrine of primary

assumption of risk. In Air Crash Disaster, private security

guards were sent to the scene of a plane crash to secure the

area. In a subsequent lawsuit, the guards claimed

psychological and emotional injuries from having to gather

and identify bodies and body parts of the victims of the

crash. Id. at 410. The district court dismissed the action,

finding that the guards had assumed the risk of the harm

that they suffered because the alleged psychological and

emotional injuries resulted from their having performed the

duties that they were hired to perform. Id. at 413-14.

The Air Crash Disaster court recognized that neither

Carter nor Turner relied explicitly on the doctrine of

assumption of risk. The court found, however, that the

rationale underlying those cases was the same rationale

underlying the affirmative defense. In particular, the court

stated:

“. . . [it] is a term of the contract of employment,

express or implied from the circumstances of the

employment, by which the servant agrees that dangers

of injury obviously incident to the discharge of the

servant’s duty shall be at the servant’s risk. In such

cases the acquiescence of the servant in the conduct of

the master does not defeat a right of action on the

ground that the servant causes or contributes to the

cause of the injury, but . . . no right of action arises in

favor of the servant at all, for, under the terms of the

employment, the master violates no legal duty to the

servant in failing to protect him from dangers the risk

of which he agreed expressly or impliedly to assume.”

Air Crash Disaster, 737 F. Supp. at 413 (quoting Felgner,

133 N.W.2d at 149 n.4) (alterations in original). 

Under the reasoning of Air Crash Disaster, Carter, and

Turner, which this Court hereby recognizes as an accurate
No. 01-2733 Hunley, et al. v. DuPont Automotive 19

statement of Michigan law, Hunley is prevented from

recovering from DuPont for the harm he suffered while

providing the head count to the fire brigade captain. Air

Crash Disaster, Carter, and Turner belie Hunley’s

contention that the doctrine of assumption of risk applies

only when the plaintiff was an employee of the defendant

and expressly contracted to assume the risk. In each of

those cases, as here, the plaintiff was an employee of the

independent security company that had been hired by the

defendant to provide security services. Moreover, none of

those cases required evidence of an express contractual

assumption of risk for the doctrine to apply. Rather, in

those cases, as here, the private security guards implicitly

assumed certain risks based on the nature of the work that

they were hired to do.

Thus, application of the doctrine of assumption of risk

under these circumstances is proper, and the reasoning

underlying that doctrine bars Plaintiffs-Appellants’ claim. 

Hunley was injured while he was performing one of the

very tasks that he was hired to perform: providing a head

count to the fire brigade captain. Although Hunley could

not know the precise location where he would find the fire

brigade captain at the time of the spill, it was nonetheless

clear that carrying out the duty to deliver the head count

necessarily involved encountering a stressful situation that

imperiled the plant’s security. No matter where the fire

brigade captain would be found, he would be dealing with

the stress of a chemical spill — the very reason for the head

count. Consequently, when Hunley was hired by Pinkerton

and was provided with his Site Post Orders requiring him to

deliver a head count in the event of a spill, he necessarily

assumed the risk of encountering the stress related to such a

spill.

Moreover, we note that not just toxic spills, but nearly

any situation that requires the presence and action of a

security guard, by its nature, embodies a certain degree of

stress. Thus, when Hunley was hired by Pinkerton to

20 Hunley, et al. v. DuPont Automotive No. 01-2733

provide security for DuPont, he assumed a general risk of

encountering and dealing with any and all stressful

situations relating to the plant’s security. Hunley cannot

now recoup damages for harm that was allegedly caused by

performing the basic duty that he was hired to perform:

encountering a stressful situation relating to the plant’s

security.

Accordingly, we AFFIRM the district court’s ruling on

the alternative basis of assumption of risk.

IV. CONCLUSION

For all of the foregoing reasons, we AFFIRM the district

court’s ruling granting summary judgment to DefendantAppellee.